NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 08-1738

UNITED STATES OF AMERICA

v.
ELTON SPENCER,
Appellant

On Appeal from the United States District Court

for the District of New Jersey
(D.C. No. 1-07-cr-00236-001)
District Judge: Honorable Renee M. Bumb

Submitted Under Third Circuit LAR 34.1(a)

October 26, 2010
Before: McKEE, Chief Judge, SLOVITER, and RENDELL, Circuit Judges.
(Filed: October 28, 2010)
______
OPINION

SLOVITER, Circuit Judge.

Appellant Elton Spencer pleaded guilty to possession with the intent to distribute
cocaine in violation of 21 U.S.C. 841(a)(1), (b)(1)(C). The District Court sentenced
him to 140 months imprisonment, the bottom of the guideline range of 140 to 175
months. Spencer appeals that sentence, which we review for reasonableness.1 See
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). We will affirm.
Spencer first asserts the District Court erred procedurally by not giving
meaningful consideration to the fact that the evidence strongly favored a sentencing
goal of rehabilitation over imprisonment. Appellants Br. at 13. Because he raises this
challenge for the first time on appeal, we review for plain error. See United States v.
Vazquez-Lebron, 582 F.3d 443, 446 (3d Cir. 2009).
[A] sentence must reflect a district courts meaningful consideration of the
factors set forth in 18 U.S.C. 3553(a). United States v. Lessner, 498 F.3d 185, 203
(3d Cir. 2007). The sections of the statute to which Spencer refers require a District
Court to consider the nature and circumstances of the offense and the history and
characteristics of the defendant as well as the need for a sentence that provide[s] the
defendant . . . correctional treatment in the most effective manner[.] 18 U.S.C.
3553(a)(1), (a)(2)(D).

The District Court had jurisdiction under 18 U.S.C.

3231. We have jurisdiction under 18 U.S.C. 3742(a) and 28
U.S.C. 1291.
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At sentencing, the District Court explained that Spencers offense was very
serious[,] . . . involv[ing] a significant amount of drugs, and also noted that Spencer had
begun his life of crime as a juvenile and continued on almost predictably every two
years or so . . . . App. at 89. As noted in the Presentence Report (PSR), Spencer was
also a career offender and possessed other controlled substances at the time of his
offense.2 Our review of the record demonstrates that the District Court meaningfully
considered the factors set forth in 18 U.S.C. 3553(a). See Rita v. United States, 551
U.S. 338, 356 (2007) (The sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.).3 Accordingly, it did not
procedurally err.
Spencer next asserts that the District Court erred substantively by giving undue
consideration to the goals of deterrence and retribution. We review this challenge for an

We note the Government asserts correctly that the previous

sentencing disparity for offenses involving crack cocaine and
cocaine powder did not affect Spencers sentencing range under the
Guidelines. Spencer was properly deemed a career offender
under U.S.S.G. 4B1.1, and the PSR therefore calculated his base
offense level at 32. See United States v. Mateo, 560 F.3d 152, 15455 (2009).
3

To the extent Spencer relies on United States v. Manzella,

475 F.3d 152, 157-59 (3d Cir. 2007), that case is inapposite
because there is no evidence here that the District Court imprisoned
Spencer solely to provide rehabilitation.

abuse of discretion, see Gall v. United States, 552 U.S. 38, 51 (2007); Tomko, 562 F.3d
at 564-67, giving great deference to the District Courts determination, Lessner, 498
F.3d at 204. In doing so, we ask whether the final sentence was premised upon
appropriate and judicious consideration of the relevant factors. Id. (internal quotation
marks omitted).
As already stated, the District Court characterized Spencers offense as very
serious and emphasized that the sentence must reflect the seriousness of the offense,
the need to promote respect for the law, and to provide just punishment. App. at 90; see
18 U.S.C. 3553(a)(2)(A). It also noted that Spencer had committed prior offenses and
that the District Courts sentence must specifically deter [him]. App. at 90; see 18
U.S.C. 3553(a)(2)(B). The Court also considered in mitigation that Spencer had not
engaged in criminal activity for some time, and had accepted responsibility. Spencer
argues that the District Courts undue emphasis on the generic need for deterrence and
retribution suggests that the Court had predetermined its sentence. Appellants Br. at
14. We disagree. Indeed, the Court merely considered relevant factors. We find no
abuse of discretion.4

In his Pro Se Supplemental Brief, Spencer contests the

District Courts jurisdiction and raises other challenges. In failing
to raise the issues before his plea, Spencer waived any challenge
to improper venue, lack of personal jurisdiction, and defects in
instituting the prosecution. Fed. R. Crim. P. 12(b)(3), (e).
Spencers other arguments also lack merit. He contends that
district courts lack subject-matter jurisdiction over criminal matters
4

Accordingly, we will affirm Spencers sentence.

but 18 U.S.C. 3231 properly confers such jurisdiction. He also

disputes the United States Attorneys power to represent the
United States in criminal matters, the authority of which is codified
in 28 U.S.C. 547(1). Finally, the Supreme Courts decision in
U.S. Natl Bank of Or. v. Indep. Ins. Agents of Am. Inc., 508 U.S.
439, 448 (1993), emphatically rejects Spencers argument that Title
21 of the United States Code is void for Congresss failure to enact
the Code into positive law.
5